If you are a sports fan and have enthusiastically watched the World cup, Olympics or the Super Bowl, chances are that certain advertisements broadcasted during these events remain etched in your minds almost as much as the event itself. It is to be noted that some of these ad campaigns ride on the publicity value of the events and get themselves associated with these events without having contributed to its financing through sponsorship. For instance, in 1996, soft drink giant Coca Cola paid a huge sum to become the official sponsors of World Cup Cricket. Its rival Pepsi promptly launched a massive advertising blitz based on the catchline: “Nothing official about it”. The Pepsi campaign captured the public imagination and Coke, as official sponsors, lost out.
The above-mentioned example is a marketing tactic known as Ambush Marketing. ‘Ambush’ literally means a surprise attack by people lying in wait in a concealed position. Ambush marketing got its name because one of its most distinguishing features is how unexpected it tends to be.
Companies that sponsor events, do so by paying a handsome price to fund the event. In return they purchase increased awareness, brand building and propensity. In ambush marketing, opportunist companies, that are not official sponsors, use creative tactics to garner the crowd’s attention in promoting their business and thereby undermine the official event sponsors.
Traditional trademark infringement involves the unauthorized use of someone else’s mark or an approximation of it to confuse consumers about the source of goods or services. However, ambush marketers are typically not using another’s mark but rather are using someone else’s venue to display their own mark. Hence it can be understood that though ambush marketers are not making any direct references to the protected intellectual property rights, they in effect transgress those intellectual property rights by attempting to exploit on the hard-earned goodwill from an event.
Reasons for survival of Ambush Marketing
- Absence of specific legislations to deal with ambush marketing.
- Short lived nature of Ambush Marketing campaigns
- In case of indirect ambush marketing, as the kind of marketing relies on suggested associations rather than real ones, laws cannot be used effectively by an alleged victim of such a campaign.
- Paucity of case laws dealing with this matter
- Success of Corporations in defending themselves
- Fear of organizers to sue large corporations who might turn out to be prospective sponsors.
Disadvantages of Ambush Marketing
- Reduces the willingness of potential sponsors to invest in official rights
- It adversely effects the funding of an event
- It jeopardizes the ability of an event organizer to retain top sponsors.
- It creates an unhealthy competitive environment.
Steps that can be taken to curb Ambush Marketing
- Stringent legislations
- Insertion of ambush marketing clause by event organizers
- Protecting event mascots and logos via trademark registrations
- Removal of non- sponsor logos from the venue of the event
- Careful policing
In ICC Development International Ltd. v Arvee it was held that ambush marketing is different from passing off. In a passing off action, there is an element of overt or covert deceit whereas ambush marketing is opportunistic commercial exploitation of an event. It was also held that commercial advertisement is a form of “commercial speech “guaranteed under Article 19(1)(a).
It may be argued that it is each corporation’s free right to advertise during international events. However, it is unjust that corporations that have not paid a single penny enjoy the same benefits as corporations that pay millions to enter into agreements with event organizers in order to acquire exclusive rights to advertise.
Ambush marketing is indeed not an ethical business practice and in the absence of specific legislation for ambush marketing, infringers tend to get away with unlawfully hitching upon the repute of the official sponsors, without having to bear the commitment of sponsorship. In view of the increasing cases of such acts by ambush marketers, there is an urgent need for enacting specific legislations to counter Ambush Marketing.